Opinion
CLAIM NO. F502258
OPINION FILED FEBRUARY 13, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Steven R. McNeely, III, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the Honorable William C. Frye, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an administrative law judge's opinion filed July 31, 2006. The administrative law judge found that the claimant proved she sustained a compensable injury. The administrative law judge found that the claimant proved she was entitled to reasonably necessary medical treatment, including surgery from Dr. Schlesinger, temporary disability compensation, and an anatomical impairment rating. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Jacqueline Webb, age 50, testified that she began working for Stant Manufacturing in August 1987. In 2004, the claimant testified, she was working in quality control in the respondents' Assembly Department. The record indicates that the claimant reported a "pulling in her lower back" at work in July 2004. Dr. Paul Davis' assessment was "suspected sciatica or LS strain."
The claimant testified that her job changed in February 2005:
Q. Tell the Judge what happened with your back and what kind of changes in the job there were.
A. Okay. In my previous job I was responsible for three machines that I checked. I ran test parts through. I was standing up, no bending, continuous bending. And when I changed jobs, I went into a different department called Plastics, and they were putting Quality back into checking the parts, so I wanted to do a really good job and did probably a lot more than what I should have done. I went through 20, in between 20 and 30 machines four times a day checking parts, bending over and pulling parts down towards me and just trying to do a good job in doing that, and it was a continuous thing every day, and I stayed on my feet all day long except for breaks. . . .
Q. What about bending and twisting or stooping or strain on your back? What was the difference between this new job you started in February and the old job?
A. I did a lot of — I had to bend over each machine and sometimes pull parts toward me to check the parts, and I checked them as many times as I could.
Q. Do you have an estimate of how many times a day you were bending and twisting?
A. Well, I would say a low average of 20 machines a day. I checked each machine anywhere from three to four times that week, so 120 times.
Q. Now, when did you start noticing problems with your back?
A. Towards the end of the week that I started the new job.
The claimant presented to Dr. Davis on February 10, 2005:
This 48 y/o in WF in at this time having changed her job at work just short of 2 wks ago. Immediately after changing jobs, she began experiencing some right lower back pain. She is now having severe radiculopathy down the right leg. She has reported this to them at work and they sent her in for evaluation. Prior to that time, she has the fibromyalgia, but she had been doing well with that. She has not had any significant pain. She now has an acute event that started immediately after the change in positions, so I cannot relate to any other source. . . .
Dr. Davis assessed "significant low back pain." Dr. Davis treated the claimant conservatively and took her off work.
An MRI of the claimant's lumbar spine was taken on February 11, 2005:
The lumbar vertebral bodies are in good alignment and show no acute abnormal bone marrow signal change. There is degenerative fatty marrow replacement changes along the apposing end plates of L5 and S1.
At the L5-S1 level, there is evidence of right paracentral disc herniation with extruded fragment extending down to the right lateral recess of S1 displacing the right S1 nerve root.
There is slight disc bulging at the L4-L5. There is no central canal narrowing. The conus medullaris appears normal in signal and size.
The impression was, "Right paracentral disc herniation with inferiorly extruded disc fragment at L5-S1 disc level displacing the right S1 nerve root."
The parties stipulated that the claim was originally accepted as compensable.
Dr. Davis referred the claimant to Dr. Scott M. Schlesinger, who saw the claimant on March 7, 2005:
Ms. Webb is a 48-year-old female who gives a history since February 10 of sciatic pain in the right lower extremity. . . . The problems started shortly after she was switched to a new job requiring more bending and lifting and reaching out in an awkward position. . . .
I have carefully reviewed the multiple images of the MRI of the lumbar spine independent of the radiologist and have requested and compared this to the radiologist's interpretation. There is a free fragment disc herniation at the right L5-S1 level with inferior migration along the pedicle of S1. My findings are in agreement with the radiologist's interpretation. . . .
A decision was made to order plain x-rays of the lumbar spine as clinically indicated for the patient's condition. The AP lateral flexion/extension x-rays reveal degenerative changes, particularly at L5-S1. The remainder of the plain x-rays are unremarkable. . . .
In this case, it is my neurosurgical consultative opinion that her sciatic pain is certainly coming from the free fragment disc herniation at L5-S1.
I have had a lengthy discussion with the patient about the options for treatment. This includes conservative care with physical therapy, chiropractic treatment, anti-inflammatory medicines, steroid medications and epidural steroid injections versus surgical intervention.
She would like to proceed with right L5-S1 transpedicle discectomy for removal of the free fragment along the medial pedicle of S1. This extrudes quite a bit inferiorly. . . .
Dr. Schlesinger corresponded with a medical case manager on March 18, 2005:
I have looked at the pictures that you have sent me on the patient's job activities. Despite the appearance that the lifting nature is not heavy, there is certainly bending involved her (sic) that if she was not accustomed to could have led to this lady's unfortunate disc herniation. Based on the patient's history that this all began with the change of jobs, one would have to assume with a reasonable degree of medical certainty that this work change and the bending involved with this change led to the disc herniation occurring.
I state this based on this history provided to me from the patient.
The parties stipulated that the claim was controverted on March 24, 2005.
Dr. Schlesinger wrote to the case manager on April 25, 2005:
I have read through the records that you sent along from the Human Resource Department regarding Jacqueline Webb. There seems to be conflicting data here. I am not really sure what you would like me to address. If the issue is causation, I would say that it is unclear to me, based on the data presented, whether this was a work related injury or not. All I can really go on is the patient's history provided to me. Some information indicates this may be a work related issue, i.e., seeing her doctor in July 2004 complaining of possible work related back injury. However, this was about a year before this presentation. I am really not clear and would need a more comprehensive with the patient regarding the history of this event to make a ruling. However, there certainly does appear to be conflicting data here.
Dr. Schlesinger wrote to Dr. Davis on May 2, 2005:
Ms. Webb was back today in follow-up. She has done well from her right L5-S1 transpedicle microdiscectomy on 3/22/05. She still has some residual neurogenic pain, but is much better. Her wound has healed up nicely.
On the issue of causation, the patient has clarified to me that she feels that yes she had a problem around a year earlier, but it was a short-lived back problem associated with work. Then she was doing well until her job changed and she was having to work on twenty machines instead of the customary 3-4 machines and this caused her to start having the onset of sciatica that resulted in the need for surgery in February 2005.
Therefore, based on the patient's history, I would state with a reasonable degree of medical certainty that the work change did result in the herniated disc, if indeed the history is valid.
As regards to returning to work, I would state that she could go back to light duty part-time progressing as tolerated. We will make arrangements for this. She is seeing the therapist today and will begin her postoperative therapeutic rehabilitation. The therapist did give her a TENS unit to use for some of the residual pain. We will see her back in one month with me and the therapist to make sure that she at that point has reached maximum medical improvement.
To help with her continued healing, we are going to put her on Neurontin for the nerve healing.
A Physician's Status Report indicated that the claimant could return to work on May 3, 2005, light duty, one-half days.
The claimant followed up with Dr. Schlesinger on June 6, 2005:
She is really coming along nicely. She is working four hours a day. We will allow her to do six hours a day for the next two weeks and then return after two more weeks to regular activity. She has followed up with physical therapy and they feel that she is coming along quite nicely as well.
I will go ahead and give her a rating of 8% in accordance with The American Medical Association publication Guides to the Evaluation of Permanent Impairment, 4th Edition, Table 75, page 113. I feel that she has reached maximum medical improvement. I will release her from my care, but will be happy to see her back should the need arise.
The claimant testified that she returned to work on about June 20, 2005.
Dr. Davis stated on July 18, 2005:
The patient has asked that I write a letter regarding her 2/10/05 office visit and the source of that problem. I feel as though my office note is very clear from that standpoint. This young lady came in after having changed jobs at work and within two weeks developed pain in her lower back with radicular pain into her leg. A subsequent work up revealed this was a herniated disc. As Ms. Webb was totally asymptomatic before changing position on her job, and then had an acute event thereafter, I could not see how this could be anything but work related. . . . I feel that if you will review my 2/10/05 office note, there will be no doubt this is a workman's compensation injury.
A pre-hearing order was filed on January 3, 2006. The claimant contended that she suffered a gradual onset work-related back injury. The claimant contended that she was entitled to temporary total disability compensation from February 10, 2005 through May 3, 2005, and that she was entitled to temporary partial disability from May 3, 2005 through June 20, 2005. The claimant contended that she was entitled to medical treatment and an 8% anatomical impairment rating.
The respondents contended that the claimant did not sustain a compensable injury.
The parties deposed Dr. Schlesinger on February 23, 2006. The respondents' attorney questioned Dr. Schlesinger:
Q. As we sit here today, can you say one way or the other, within a reasonable degree of medical certainty, as to whether or not her disk herniation was caused by her working activities?
A. Well, I mean, if I base it on the assumption that the data she gave me is accurate, then I would state that, reviewing the pictures, et cetera. If the history that you have provided is accurate, then it would be impossible for me to say that.
The claimant's attorney asked Dr. Schlesinger the following:
Q. If the administrative law judge who hears this case finds that the facts are just like they were portrayed to you in this May the 2nd letter, would that still be your opinion, that work was a major cause of her herniated disks?
A. Yes.
A hearing was held on March 10, 2006. The claimant testified that she had returned to full-time work for the respondent-employer.
The administrative law judge found, in pertinent part:
3. On or about February 10, 2005, the claimant sustained a compensable injury to her low back, by gradual onset, arising out of and in the course of her employment, which was the major cause of her disability and need for treatment.
4. The claimant is entitled to such medical care as may be reasonably necessary in connection with her compensable injury, specifically including the medical care she has received, such as the surgery performed by Dr. Schlesinger.
5. As a result of her compensable injury, the claimant remained in a healing period and was totally incapacitated to earn wages from the date of injury until May 3, 2005, so that she is entitled to benefits for temporary total disability.
6. As a result of her compensable injury, the claimant continued in her healing period and was temporarily partially disabled from May 3, 2005, until June 20, 2005, so that she is entitled to temporary partial disability benefits in the amount of $965.00.
7. As a result of her compensable injury and related surgery, the claimant has sustained permanent anatomical impairment in an amount equal to 8% to the body as a whole, as assessed by Dr. Scott M. Schlesinger.
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Compensability
Ark. Code Ann. § 11-9-102(4)(A) defines "compensable injury":
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). The burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii).
The administrative law judge found in the present matter, "On or about February 10, 2005, the claimant sustained a compensable injury to her low back, by gradual onset, arising out of and in the course of her employment, which was the major cause of her disability and need for treatment." The Full Commission affirms this finding.
The claimant, who was a credible witness, began working for the respondent-employer in 1987. The claimant began reporting work-related back pain in 2004 and was assessed with lumbosacral strain. The claimant testified that her job changed in February 2005. The claimant's new job required much more bending, twisting, and pulling. The claimant began noticing back problems after about one week. The claimant began treating with Dr. Davis. An MRI of the claimant's lumbar spine in February 2005 showed a disc herniation at L5-S1. In March 2005, Dr. Schlesinger confirmed that there was a disc herniation at L5-S1. Dr. Schlesinger opined that the claimant's sciatic pain was the result of this herniation. Dr. Schlesinger stated in March 2005, "Based on the patient's history that this all began with the change of jobs, one would have to assume with a reasonable degree of medical certainty that this work change and the bending involved with this change led to the disc herniation occurring. I state this based on this history provided to me from the patient." The Full Commission finds that Dr. Schlesinger's causation opinion, which was based on the credible history provided him by the claimant, is entitled to significant weight.
The Full Commission also notes Dr. Davis' July 2005 statement, to wit: "As Ms. Webb was totally asymptomatic before changing position on her job, and then had an acute event thereafter, I could not see how this could be anything but work related. . . . I feel that if you will review my 2/10/05 office note, there will be no doubt this is a workman's compensation injury."
The Full Commission finds that the claimant proved she sustained a compensable injury pursuant to Ark. Code Ann. § 11-9-102(4)(A)(ii)(b). The claimant proved that she sustained an injury causing physical harm to the body and arising out of and in the course of employment, and that the injury was a back injury not caused by a specific incident and not identifiable by time and place of occurrence. The claimant established a compensable injury by medical evidence supported by objective findings, namely the herniated disc shown at L5-S1. The claimant proved that the compensable injury was the major cause of her disability and need for treatment. The decision of the administrative law judge is affirmed.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). The administrative law judge found in the present matter, "The claimant is entitled to such medical care as may be reasonably necessary in connection with her compensable injury, specifically including the medical care she has received, such as the surgery performed by Dr. Schlesinger." The Full Commission affirms this finding.
The Full Commission has determined supra that the claimant sustained a compensable injury which resulted in a herniated disc at L5-S1. The preponderance of evidence demonstrates that the treatment and referrals provided by Dr. Davis and Dr. Schlesinger was reasonably necessary in connection with the claimant's compensable injury. On or about March 7, 2005, Dr. Schlesinger performed a discectomy at L5-S1. The claimant reported good results from surgery and she eventually returned to work. The evidence clearly shows post-surgical improvement. Post-surgical improvement is a relevant consideration in determining whether surgery was reasonably necessary. Winslow v. D B Mech. Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). The Full Commission affirms the administrative law judge's award of additional medical treatment in the instant matter.
C. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages; temporary partial disability is that period within the healing period in which the employee suffers only a decrease in the capacity to earn the wages she was receiving at the time of the injury. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). "Healing period" means "that period for healing of an injury resulting from an accident." Ark. Code Ann. § 11-9-102(12).
The administrative law judge found in the present matter, "5. As a result of her compensable injury, the claimant remained in a healing period and was totally incapacitated to earn wages from the date of injury until May 3, 2005, so that she is entitled to benefits for temporary total disability. 6. As a result of her compensable injury, the claimant continued in her healing period and was temporarily partially disabled from May 3, 2005, until June 20, 2005, so that she is entitled to temporary partial disability benefits in the amount of $965.00."
The Full Commission finds that the claimant proved she was entitled to temporary total disability compensation from the date of injury through May 2, 2005. We find that the claimant proved she was entitled to temporary partial disability beginning May 3, 2005 through June 6, 2005.
The Full Commission has affirmed the administrative law judge's finding that the claimant proved she sustained a compensable injury on or about February 10, 2005. The preponderance of evidence demonstrates that the claimant entered a healing period and was incapacitated to earn wages beginning February 10, 2005. Following surgery, which the Commission has determined was reasonably necessary, a Physician's Status Report indicated that the claimant could return to light-duty work on May 3, 2005. The evidence thus demonstrates that the claimant was entitled to temporary partial disability beginning May 3, 2005.
On June 6, 2005, Dr. Schlesinger assigned a permanent impairment rating and stated that the claimant had reached maximum medical improvement. Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994), citing Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). Temporary total disability compensation cannot be awarded after the claimant's healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).
In the present matter, Dr. Schlesinger assigned a permanent impairment rating and pronounced maximum medical improvement as of June 6, 2005. The claimant was therefore not entitled to temporary total or temporary partial disability compensation after June 6, 2005, even though the claimant did not return to work until June 20, 2005.
D. Anatomical Impairment
Pursuant to Ark. Code Ann. § 11-9-522(g)(1)(a), the Commission has adopted the Guides to the Evaluation of Permanent Impairment (4th ed. 1993) to used in assessing anatomical impairment. Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). Any determination of the existence or extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c)(1)(B); Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003).
In the present matter, Dr. Schlesinger assigned an 8% anatomical impairment rating. The Full Commission finds that this rating comports with the Guides, supra. Additionally, we find that the 8% rating assessed by Dr. Schlesinger was based on objective and measurable findings, and that the compensable injury was the major cause of the claimant's anatomical impairment.
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's finding that the claimant proved she sustained a compensable injury, and that the claimant proved she was entitled to reasonably necessary medical treatment, temporary total disability compensation, and an anatomical impairment rating. The Full Commission finds that all of the medical treatment of record, including surgery by Dr. Schlesinger, was reasonably necessary in connection with the compensable injury. We find that the claimant proved she was entitled to temporary total disability compensation from the date of injury through May 2, 2005; the claimant proved she was entitled to temporary partial disability from May 3, 2005 through June 6, 2005. The claimant proved she was entitled to the 8% anatomical impairment rating assessed by Dr. Schlesinger. The claimant's attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).
IT IS SO ORDERED.
OLAN W. REEVES, Chairman
CONCURRING OPINION
I concur with the Majority decision finding that the claimant sustained a compensable gradual on-set back injury and awarding related benefits. I now write separately to address the issue of whether the claimant's job duties were rapid and repetitive.
After reviewing the record, I find that the claimant's work was both rapid and repetitive in nature. The Court has previously determined that an injury caused by rapid and repetitive motion must be evidenced by tasks that are repetitive and that the repetitive motion itself must be performed rapidly. Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). The Court has further indicated that multiple tasks may be considered together in determining whether the repetitive requirement is met. Baysinger v. Air Systems, Inc., 55 Ark. 174, 934 S.W.2d 230 (1996). However, the Court has also determined that in instances where the duties or tasks are separated by intervals that are several minutes long, the work is not rapid and repetitive. Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867.
The Court has also determined that a worker who used an air gun to attach bolts at the rate of one per fifteen seconds would be sufficient to constitute rapid and repetitive motion. See, High Capacity Prods. V. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Additionally, the Court has awarded benefits when a worker performed repetitive motions at the rate of 115 to 120 times per day with 1.5 minute intervals between.See, Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). However, the Court has held that a custodian did not perform rapid repetitive motions, despite repeating motions, because the movements in completing the tasks were different and were separated in time.See, Malone, supra. The Court has further determined that one must, "consider the positioning of the part of the body as well as the number of movements the claimant has to undergo to determine if the movement is `rapid and repetitive'" Patterson v. Frito-Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999).
In the present case the claimant testified that she worked on 20 to 30 machines at a time. She testified as follows,
I went through 20, in between 20 and 30 machines four times a day checking parts, bending over and pulling parts down towards me and just trying to do a good job in doing that, and it was a continuous thing every day, and I stayed on my feet all day long except for breaks.
The claimant estimated that some six hours of her day were spent checking parts.
In further describing her duties, the claimant said that she had to inspect eight parts per machine on average. She testified that she would bend over and pick up a few parts at a time. She testified,
A. The chute goes up the back of the machine and all these parts are falling down, so I would go and I'd bend over and get these parts and check them and put them back in.
All the cavities weren't there, so I might bend over like this and rake all of them in and then check some more of them and then go to the next machine.
Q. About how long would you spend at a machine?
A. I tried to just spend five minutes per machine, because I had so many machines, and it would take me about an hour-and-a-half to check all the machines one time, and I tried checking them four times a day.
In my opinion, the aforementioned testimony shows the claimant's job duties were both rapid and repetitive in nature. I note the respondents' assertion that the claimant would only be required to bend once every four minutes. I find that the claimant would be required to bend much more frequently. The claimant's testimony indicates that in a five minute period she would be required to bend over and pick up an average of eight parts, inspect them, and then move to another machine. When considering the claimant's testimony that there were four cavities per machine, and that she had to check each one for parts, it is apparent that she was required to bend repeatedly. Likewise, it is apparent that she would be required to do so in a rapid nature and on a more frequent basis than asserted by the respondents.
I also note that when considering the multiple tasks performed by the claimant as a whole, it is even more apparent that the claimant's actions were rapid and repetitive. The claimant's testimony was that she had to repeatedly bend and twist in order to check various parts on the machine. Then she would straighten, examine the parts, set the parts down, and then gather more, only to repeat the process over before going to another machine. While there would be a brief pause in the time period in which she was looking at parts, it is clear when considering the claimant's repeated actions, they were both rapid and repetitive pursuant to the rationale of Baysinger and Boyd.
Accordingly, I concur with the Majority opinion.
____________________________ PHILIP A. HOOD, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury in the form of a gradual onset back injury. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
The claimant claims that pursuant to job changes in February of 2005, she sustained a gradual onset back injury. However, it is of note that the claimant had worked for the respondent employer in the Quality Control Division for the past six years. As part of her job duties prior to the new job she was required to bend as well. The claimant was also on her feet a good portion of the day as well. The claimant has fibromyaligia which was diagnosed in 2002. She testified that she was tired all the time and had tenderness in her neck, back, legs, shoulders, and arms. The medical evidence demonstrates that in 2004 the claimant had the same type of back problems. She stated that she was not sure what caused her problems and she admitted that she has had low back problems on and off in the past.
The claimant stated that her problems actually began at home while she was getting ready for work, not at work. She testified as follows:
Q. Do you recall where you were at when it went into spasms?
A. I was at home, and getting ready to go to work.
Q. Had you just gotten up?
A. I woke up and it was like that.
Q. So your leg pain started when you woke up that day?
A. Or during the night when I was sleeping or, yes, sir.
In order to establish compensability of an injury, the claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 (Supp. 2005). See, Reed v. ConAgra Frozen Foods, Full Commission Opinion, February 2, 1995 (Claim No. E317744); see also, Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000). If the claimant does not contend that the injury is the result of a specific incident that is identifiable by time and place of occurrence, then the claimant must show that the injury is a rapid repetition motion injury. In order to prevail on a rapid, repetitive motion claim, the claimant must prove by a preponderance of the evidence that she sustained an injury causing internal or external harm to the body which arose out of and in the course of their employment and which required medical services or resulted in disability or death; that the injury was caused by rapid repetitive motion; that the injury was the major cause of the disability or need for treatment; and must establish a compensable injury by medical evidence supported by objective findings.Hapney, supra.
However, in addition to these requirements, if the injury falls under one of the exceptions enumerated under Ark. Code Ann. § 11-9-102(4)(A)(ii), the "resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment." Ark. Code Ann. § 11-9-102(4)(E)(ii) (Supp. 2005).
If an employee fails to establish by a preponderance of the credible evidence any of these requirements for establishing the compensability of the alleged injury, he fails to establish the compensability of the claim and the claim must be denied. Reed, supra.
In applying the controlling law under Act 796 of 1993 to the evidence in this case, the Commission is to strictly construe the Act. Ark. Code Ann. § 11-9-704(c)(3). Under the gradual onset exception to the specific incident requirement, the claimant must establish a causal connection between her injury and her employment by medical evidence supported by objective findings and she must establish that her injury is the major cause of her disability or need for treatment.
There is an important element that the claimant has to prove in order to prove a gradual onset injury. She must prove that her job was rapid and repetitive. The evidence demonstrates that the claimant worked on approximately twenty machines a day and she checked each machine anywhere from three to four times. She stated, when asked how many times a day she was bending or twisting, she answered, "well, I would say a low average of twenty machines a day. I checked each machine anywhere from three to four times that week, so one hundred and twenty times." Checking twenty machines in the course of an eight-hour day, bending over once each time, that calculates to twenty times in each eight-hour day. Even if you assume that the claimant was checking the machines three or four times a day instead of a week, she is doing the bending once every four minutes in an eight-hour shift. This is clearly not rapid and repetitive.
Furthermore, we also have the medical opinions of Drs. Schlesinger and Davis who treated the claimant. I give no weight to the opinion of Dr. Davis who stated that "a subsequent work up revealed this was a herniated disc. As Ms. Webb was totally asymptomatic before changing position on her job, and then had an acute event thereafter, I could not see how this could anything but work related." Clearly, Dr. Davis was told that the claimant specifically had an acute event. An acute event is not a gradual onset. In my opinion, this "acute event" would equate to a specific incident. Moreover, the opinion of Dr. Schlesinger stated, "Therefore, based on the patient's history, I would state with a reasonable degree of medical certainty that the change did result in the herniated disc, if indeed the history is valid." It is clear that Dr. Schlesinger was not aware that the claimant suffered from prior problems in 2004. He was basing his opinion on a history provided by the claimant, which was clearly not complete.
The claimant also cannot prove that the alleged compensable injury is the major cause of her disability or need for treatment. Dr. Schlesinger stated that he thought that the claimant was repetitively bending and lifting all day. When told that the claimant was lifting approximately 30 grams, he admitted that lifting that amount would be a negligible weight and would not have been something that would have caused her to have a herniated disk.
In my opinion, after conducting a de novo review of the record, I find that the claimant has failed to meet her burden of proof. Accordingly, for all the reasons set forth herein, I must respectfully dissent from the majority opinion awarding the claimant benefits.
___________________________________ KAREN H. McKINNEY, Commissioner